Secularism and positive rights

I was flipping through Stephen Holmes and Cass Sunstein’s The Cost of Rights, which points out that the distinction between positive and negative rights is dubious, or at least not very sharp. This is because assertion of a negative right—a right not to be interfered with by others or the state—is empty without the demand that this right be enforced. This demand involves significant burdens on the public treasury, so in that sense it is a demand for a positive right—that the state or others do something.

This might have an application to a certain kind of argument in favor of secularism. That is, a demand for a secular state is sometimes phrased as an assertion of a negative right: I don’t want other people’s faith-based ways of life interfering with me, either directly or though the state favoring their religion. So if we are to recognize such a right to non-interference, we should do our public business through a secular state.

But then, this is not as pure a demand for non-interference as it might first look. For if I ask for an enforcement of non-interference, I am then demanding that violations of secularity should be policed. I assert a right to enjoy my back yard as I please—within limits agreed to through non-faith-based public reasons, such as not turning it into a toxic waste dump. But that right does not have much content unless I can call up the police and bring a case in the court system against would-be squatters and trespassers. The police and the legal system is expensive, and it is supported as a public good out of the public treasury. The taxation that supports it interferes with all our lives.

Similarly, the separation of religion and state has to be policed and litigated. In the US, this happens constantly and at no insignificant expense.

An opponent of a secular state, however, could well object to the enforcement aspects of the separation of religion and state. After all, this amounts to a positive right that must be recognized and funded by all, including conservative religious people. They partly bear the burden of supporting a political arrangement that is an imposition upon them. Consider how pissed off conservative Christians can get when yet another nativity scene is banned from a public area, or when prayer is disallowed in a school graduation. They don’t perceive this as merely being prevented from imposing their beliefs on others. They see it as an imposition on them as religious people. They may be partly correct.

I’m not sure if all this adds up to a lot. It’s hardly news that there is no knock-down argument for secularism in terms of neutrality or noninterference or what-have-you. It might, however, help emphasize that secular liberals need to present a more robust, positive case for the virtue of a secular public life.